FMLA Established Through Lay and Expert Testimony - 3rd Circuit

Last week, in a matter of first impression, the Third Circuit Court of Appeals decided:

"whether a combination of expert and lay testimony can establish that an employee was incapacitated for more than three days as required by the FMLA’s implementing regulations."

Schaar v. Lehigh Valley Health Services, Inc. (.pdf), No. 09-1635 (3d Cir. March 11, 2010). I'll cut to the chase: Yes.

The facts are a little confusing... the employee missed four consecutive days of work, but two were previously scheduled vacation days. And on the two sick days, she did not call in, but rather taped a note from her doctor to her supervisor's door. The doctor's note said the employee was too sick to work for two days. The doctor later testified that the employee should have been better after a day or two, but it was "possible, although very unlikely" that she would not be recovered after three days.

The employer terminated the employee who later filed suit, claiming interference and discrimination in violation of the FMLA. At the trial level, the employer won on summary judgment. The District Court held that the employee did not qualify for FMLA since she:

"did not establish a serious health condition because she failed to present medical evidence that she was incapacitated for more than three days."

That was the sole issue on appeal.

The Third Circuit noted that various courts have employed one of three standards:

"(1)the evidence of incapacitation must come exclusively from a medical professional;
(2) lay testimony, on its own, is sufficient; or
(3) lay testimony can supplement medical professional testimony or other medical evidence."

The Third Circuit officially adopted the third option. Notably, the Court explicitly rejected the notion that lay testimony in itself is sufficient to avoid summary judgment. The opinion also cites and discusses decisions from other Circuits (Fifth, Seventh, Eighth, and Ninth) on this issue starting on p. 10 of the opinion (.pdf).

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.